Saturday, July 02, 2011

Ukraine’s ‘top lawyers’ can be worth knowing

Whether you’re a small businessperson, big foreign investor,
oligarch, diplomat, gumshoe journalist or average citizen, getting to
know the top commercial lawyers in Ukraine can come in handy.

Why?

Because these intelligent, educated and well-informed individuals have
some of the best insights into what is happening in Ukraine and how to
get things done.

They know the country’s muddled laws inside out and how favoritism works
in courts. As a result, they know best how to swim successfully in the
murky waters of this nation’s very untrustworthy judicial system.

They know best how to protect investments, open closed doors, seal
deals, get permits and pay taxes. They know what lawmakers are up to
when they adopt legislation that stifles competition or fuels
corruption. They know what law changes are needed to fix the country.
The list goes on.

In servicing foreign investors – big and small – they help bring fresh
blood into Ukraine’s economy and know best of all what legislative
hurdles are keeping badly needed foreign direct investment out.

In servicing domestic oligarchs and their companies, they know what is
happening – and far too often choking – Ukraine’s heavily monopolized
and politicized economy.

“Lawyers do get in on a lot of information,” said Oleh Malskyy, a
partner at Kyiv-based AstapovLawyers. “It adds a lot to understanding of
what’s going on in the country.”

Ukraine is not an easy place to do business. Mitigating risks is more
than wise. Getting out of trouble when it arises is a matter of
survival.

When it comes to the best of Ukrainian lawyers, sources say they work
hard and long hours, but get rewarded well. Ukraine’s top lawyers can
earn millions of dollars annually, enough to retire on after a few years
of grueling work, insiders said.

“The minimum annual income that qualifies you as a top lawyer would be
somewhere at $2 million,” said Malskyy. “This is approximately what a
leading Ukrainian law firm would pay a partner for a successful year.”

According to Malskyy, lawyers at international law firms typically
charge the highest rates for their work, with the top end at $850 or so
per hour. Hiring junior lawyers at the same firm can cost three times
less.

“The difference between the monthly salaries of beginner lawyers and a
top partner can be between 100 to 1,000 times, [with the] beginner at a
starting salary of $1,000-2,000 per month,” said Serhiy Chorny, managing
partner in Kyiv for international legal services giant Baker &
McKenzie.

Some of Ukraine’s top lawyers are actually born abroad. Foreign lawyers
often play a vital role in bringing their valued expertise to Ukraine.
Many of them also go out of their way to lobby reforms in the country
with domestic officials and abroad.

The majority of Ukraine’s top lawyers are Soviet-born, but
Western-educated. As a result, they stand out in terms of experience,
know-how and world views from the older generation. They see and
understand how far Ukraine has come since its oppressive past and how
far it has yet to go before attaining European or American standards.

Some high-profile Ukrainian lawyers – such as Serhiy Vlasenko and Oleg
Riabokon -- both formerly of Kyiv-based Magisters law group – have in
recent years made the leap into Ukrainian politics. If more follow suit
soon, some think Ukraine could stand a better chance of improving its
governance.

“It would be really great to get into parliament and work there on
improving the legislation,” said Chorny. “I think any normal lawyer
would want to do it. You feel there is an opportunity to do it, and you
really know how.”

So, who are the top Ukrainian lawyers?

Choosing the top 10 or top 50 commercial lawyers is not an easy task.

In reality, there are likely hundreds of lawyers in Ukraine that are at
the top of their game. Some excel in one area. Others are versatile.
Others may not know Ukraine’s laws so well, but are creative in finding
solutions. Others are simply superb and inspirational managers.

Here is how the Kyiv Post conducted this survey: We asked more than 70
top commercial law firms to nominate three of the nation’s top lawyers,
giving them a ranking from 1 to 3; nominations of in-house lawyers were
forbidden. Three points were awarded for first place, two for second and
one for third.

We received 27 responses and nearly 50 nominations of lawyers. Twelve
lawyers stood out from the crowd, each receiving more than four points.

News in review

Parliamentary Assembly Council of Europe (PACE) Explanatory Report calls on Ukraine to adopt a Full Parliamentary System in line with other European States

"It would be better for the country to switch to a full parliamentary system with proper checks and balances and guarantees of parliamentary opposition and competition."

Constitutional Court challenge

The authority of the President to dismiss Ukraine's parliament has been challenged in Ukraine's Constitutional Court amidst concern that the President's actions are unconstitutional in that he has exceeded his authority to dismiss Ukraine's parliament.

On April 19 the Parliamentary Assembly of the Council of Europe passed a resolution in consideration of a report titled Functioning of democratic institutions in Ukraine. (Items 13 and 14) stated:

“ The Assembly deplores the fact that the judicial system of Ukraine has been systematically misused by other branches of power and that top officials do not execute the courts’ decisions, which is a sign of erosion of this crucial democratic institution. An independent and impartial judiciary is a precondition for the existence of a democratic society governed by the rule of law. Hence the urgent necessity to carry out comprehensive judicial reform, including through amendments to the constitution.

The Assembly reiterates that the authority of the sole body responsible for constitutional justice – the Constitutional Court of Ukraine – should be guaranteed and respected. Any form of pressure on the judges is intolerable and should be investigated and criminally prosecuted. On the other hand, it is regrettable that in the eight months of its new full composition, the Constitutional Court has failed to produce judgments, thus failing to fulfil its constitutional role and to contribute to resolving the crisis in its earlier stages, which undermines the credibility of the court.

There is an urgent need for all pending judgments, and in particular the judgment concerning the constitutionality of the Presidential Decree of 2 April 2007, to be delivered. If delivered, the latter should be accepted as binding by all sides.
”

The associated explanatory report under the sub-heading of Pressure on the courts expressed concern that "Several local courts have made decisions to suspend the Presidential Decree only to then withdraw them, allegedly under pressure from the presidential secretariat." (item 67)

In emphasis the report (item 68) stated

"This is a worrying tendency of legal nihilism that should not be tolerated. It is as clear as day that in a state governed by the rule of law judicial mistakes should be corrected through appeal procedures and not through threats or disciplinary sanctions ”

On April 30, on the eve of the Constitutional Court's ruling on the legality of the president's decree dismissing Ukraine's parliament, President Yushchenko, in defiance of the PACE resolution of April 19 intervened in the operation of Ukraine's Constitutional Court by summarily dismissing two Constitutional Court Judges, Syuzanna Stanik and Valeriy Pshenychnyy, for allegations of "oath treason." His move was later overturned by the Constitutional Court and the judges were returned by a temporary restraining order issued by the court.

Following the president's intervention the Constitutional Court still has not ruled on the question of legality of the president's actions.

Stepan Havrsh, the President's appointee to the Constitutional Court, in prejudgment of the courts decision and without authorization from the Court itself, commented in an interview published on July 24

“ I cannot imagine myself as the Constitutional Court in condition in which three political leaders signed a political/legal agreement on holding early elections, which also stipulates the constitutional basis for holding the elections... How the court can agree to consider such a petition under such conditions.”

Olexander Lavrynovych, Ukrainian Minister for Justice, in an interview published on Aug 3 is quoted as saying

“ According to the standards of the Constitution and the laws of Ukraine, these elections should have been recognized invalid already today. But we understand that we speak about the State and about what will happen further in this country. As we've understood, political agreements substitute for the law, ... The situation has been led to the limit, where there are no possibilities to follow all legal norms.